FTN - 11/25/01

GLORIA BORGER, U.S. News & World Report: Today on Face the Nation, the Northern Alliance enters Kunduz. How soon before they reach Kandahar?

Over the last three weeks, the Taliban have lost three-quarters of their territory, including the capital of Kabul. What's the next target? Are the Taliban finished?

We'll ask Northern Alliance Foreign Minister Dr. Abdullah Abdullah.

Then, should suspected terrorists be tried in American criminal courts or secret military tribunals? We'll have a debate between former deputy attorney general George Terwilliger and law professor David Cole.

Then we'll talk about the next stage of this war with New York Times columnist Tom Friedman and former CIA director Robert Gates.

BORGER: Welcome again to the broadcast. Bob Schieffer is off this morning.

We'll be talking about the controversy over military tribunals in a moment, but first we're going to go to Kabul and CBS News Correspondent Elizabeth Palmer.

We did expect to have Dr. Abdullah Abdullah here of the Northern Alliance, but unfortunately he was called away at the last minute.

So, Elizabeth, can you tell us what's the latest in Kunduz?

ELIZABETH PALMER, CBS News: Yes, I've just been talking to people there.

The Northern Alliance says that they think this is the final, decisive assault. They have got troops moving in from the east. They think that there are about 1,000 Taliban fighters still in possession of the town, a lot of them foreign, Pakistanis and people from other Arab countries.

Over the past few days, some Afghan Taliban have been kind of leaking out and slowly surrendering to the two generals who flank Kunduz. Apparently negotiations for a generized surrender kind of fell apart, and now the Northern Alliance is prepared to fight for the center of the town.

Nobody really knows exactly how that's going to pan out, but they do speak of heavy Taliban casualties.

Some of the foreign Taliban have indeed given up. About 500 gave themselves up to the Uzbek general Rashid Dostum a couple of nights ago. But apparently, once they were in his possession, if you like, they had a change of heart. One of them pulled a pin on a grenade while he was with a couple of the Northern Alliance generals, his captors; killed himself and a general. And another group of them, once they were inside the prison, took guns away from their captors and turned the guns on the Northern Alliance.

So, as you can see, a very unstable situation. But, once again, the United Front says they think they're going to have Kunduz by tomorrow.

Now, there was a press conference by the president f Afghanistan, the now ex-president of Afghanistan, Burhanuddin Rabbani, earlier today. And it was especially significant because he said that they are willing to give those Arab fighters, the Taliban foreign fighters, if you like, to the United Nations, which is a great concession, and also a sort of a gesture of faith before the talks in Bonn, that the United Front is prepared to abide by international norms, humanitarian norms, when it comes to prisoners of war, even Taliban prisoners of war.

Gloria?

BORGER: Thank you very much, Elizabeth.

And now we're going to go to a debate on military tribunals. With us, former deputy attorney general George Terwilliger, who thinks military tribunals are actually a good idea, and David Cole, a Georgetown University law professor who opposes them.

Now, for those of you who don't know about these military tribunals that the president has authorized, they are trials that would take place in secret--they could take place at sea or on military bases. They would be very swift proceedings with less stringent standards of evidence than we are used to in this country, and verdicts that would not have to be unanimous.

GEORGE TERWILLIGER, Former Deputy Attorney General: Well, I think, first of all, Gloria, it's important that everyone understand that the people like me, who support the president's preserving the option to use military tribunals, aren't for the erosion of civil liberties. We all understand that civil liberties means personal freedom, and it's very important that they be maintained and not sacrificed in the name of security.

But what's equally important to realize is that military tribunals are meant to address behavior or conduct that arises in the context of war and warfare.

The people who would be subject to these tribunals, who would be tried by that method, are what's known in the law of war in international law as unlawful combatants. They're a category of people who go beyond criminals.

What we saw on September 11 is behavior that goes beyond mere criminal activity, and calling it war is not some rhetorical flourish, but is in fact a legal statement that has legal consequences.

BORGER: So clearly you believe they're not entitled to American civil rights?

TERWILLIGER: It's not a question of whether they're entitled to them. It's a question of what's the best method to adjudicate responsibility.

BORGER: Mr. Cole, why should foreign terrorists be entitled to our civil rights and be tried in criminal court?

DAVID COLE, Georgetown University Law Professor: Well, these rights that attach to criminal trials are not some sort of deluxe optional protocol that we can dispense with whenever the president decides he wants to dispense with it. These are the basic, bare minimum that we have decided, over 200 years, are necessar to insure that we identify the guilty and protect the innocent.

And when you do away--when you adopt a military tribunal, you basically do away with all of that. You have secret trials instead of a public trial. Instead of a trial by jury, you have a trial by the prosecutor. The military is essentially the prosecutor, the judge, the jury and the executioner.

And, I think most troubling of all, the government can try its case on the basis of secret evidence that it never even presents to the defendant or his lawyer. And how can you possibly defend yourself against evidence that you can't see?

So these are trials, it seem to me, are inherently unfair. And we have been able to try many terrorists. We've tried spies, we've tried saboteurs in criminal courts, affording them all the same rights that we understand are critical...

BORGER: But there is historical precedent for military tribunals, World War II for example.

COLE: There is historical precedent, but this order goes far beyond historical precedence. The historical precedence says, in a time of declared war, you can use a military tribunal to try those who are fighting for the country with which we are at war. Here, we don't have a declared war at all. So the question is, who can you apply it to? And even...

BORGER: But we are in war, we are in war.

COLE: Well, even if you say we're in a de facto war with Al Qaeda, the terms of the order are not limited to members of Al Qaeda. It's any person in the United States who's not a citizen who's accused of a terrorist crime, whether it's related to September 11 or whether it's related to Al Qaeda or not.

And that's clearly beyond the authority that Congress gave the president. When the president went to Congress after the events of September 11, he said, give me authority to use all force to fight terrorism. They said, no, we'll give you all authority to fight the perpetrators of September 11. He's gone far beyond that here.

BORGER: Mr. Terwilliger, over the weekend Spanish officials said that they would refuse to extradite eight men that they've charged with complicity in the September 11 events unless they could be assured that they would actually be tried in a criminal court here and not in a military tribunal. Isn't this a major setback?

TERWILLIGER: I don't think so, and it will be interesting to see if that position is maintained over time.

Each nation fundamentally in international law, Gloria, has a right to self-defense. And what the tribunal option represents is a right of self-defense, an exercise of the right of self-defense.

The flaw in Professor Cole's argument is that we may not be in a declared war as a result of the bombing of Pearl Harbor, but there is no question we are in a war. In fact, it's a new paradigm of warfare.

And as Justice Robert Jackson, the Nuremberg prosecutor, observed so long ago, international law is not static, it adapt itself to changing circumstances.

And we have circumstances here where we cannot protect the intelligence sources and methods that we need to protect in order to preempt further acts without protecting the evidentiary basis that's used in these trials.

BORGER: Mr. Cole, I'll let you respond here.

COLE: I think the fact that our friends, Spain, Europe, are saying they will not extradite people here if they're going to be subject to military tribunals because those tribunals violate the basic requirements that they hold, suggests that we're doing something wrong, when even our allies especially.

And it seems to me it's important that we be seen at this juncture doing justice and seeking to do justice rather than simply exercising military might. Military justice is not justice.

BORGER: Very quickly.

TERWILLIGER: There is a fundamental misconception here that somehow a military court cannot be just. Our own soldiers and airmen are subject to military justice on a regular basis. The military can provide fair trials.

BORGER: Gentlemen, I'm going to ask you to stand by for a moment. We have just gotten word that we do have Dr. Abdullah Abdullah from Kabul.

Thank you very much, Dr. Abdullah, for getting with us this morning. I guess the first question I need to ask you, is Kunduz now under the control of the Northern Alliance?

ABDULLAH ABDULLAH, Northern Alliance Foreign Minister: Yes, most of Kunduz. Most parts of Kunduz city is under the control of our forces. Only in one part there is a pocket of resistance by the Taliban and foreigners which are fighting alongside Taliban against us.

But as a whole, I could say that Kunduz is liberated. Movement of our forces towards Kunduz has started around noon today. And a few hours ago, I was reported that Kunduz is fully liberated, instead of one pocket of resistance, which is a sporadic incident.

BORGER: Dr. Abdullah, former President Rabbani, the head of the Northern Alliance, said today that he is willing to release defecting Taliban. Does this mean a blanket amnesty?

ABDULLAH: There is an amnesty for all (inaudible) Taliban soldiers--those who have not committed crimes. But for Taliban leaders, they will be treated case by case.

Those who have committed crimes against the people of Afghanistan, war crimes, crimes against humanity, they will be treated case by case. There is no overall or general amnesty for Taliban forces.

BORGER: So you mean, such as Mullah Omar, for example?

ABDULLAH: Of course, Mullah Omar is a war criminal. There are hundreds of other Taliban senior military commanders or leadership of the Taliban, which they would be considered as war criminals.

BORGER: Now, what about the foreign supporters of Al Qaeda fighting with the Taliban? Does this amnesty apply to them, as well?

ABDULLAH: No. There is no amnesty for terrorists in Afghanistan Terrorists will be treated as terrorists, and they will be brought to justice.

BORGER: Northern Alliance soldiers said over the weekend that Pakistani airplanes were evacuating Pakistanis who were fighting alongside the Taliban. The United States has denied these reports. What can you tell us about that?

ABDULLAH: No, we haven't received such reports, and there hasn't been such contacts of Pakistanis.

But then, today we received a delegation which were mainly from Afghans who are living as refugees in Pakistan. They have come to Kabul and they are negotiating with our people, with our leadership in Kabul. These are former Mujahedeen people, Mujahedeen commanders. They want to get the Pakistani prisoners, which are prisoners of our war in our custody, back home.

But this negotiation will continue, and I think the case with the all prisoners of war is the same, regardless of their citizenship.

BORGER: There are reports today that the Marines will be coming into southern Afghanistan soon. Do you expect them to help you take Kandahar?

ABDULLAH: Sorry, the line was not good. I didn't get your answer correctly.

BORGER: I will repeat it. There are reports today that the Marines will be coming in soon, into southern Afghanistan. And the question is, do you expect them to help you take Kandahar?

ABDULLAH: We haven't received such reports. Kandahar situation, of course, Taliban forces are under great pressure. There is internal resistance. There is uprising by the population in some parts of Kandahar, and Taliban leadership and Taliban forces there are under great pressure because of those fightings which are already taking place in that part of the country.

BORGER: How soon do you expect to go into Kandahar, Mr. Abdullah?

ABDULLAH: I think the situation in Kandahar and the rest of the areas of Afghanistan and some parts of Afghanistan which is still under the Taliban control, it is going to be matter of days before it will come to an end, because Talibans have already--the beginning of the end has already started.

And they are only contained in a small area in southern Afghanistan. Their last stronghold in northern Afghanistan, which was a strong one, Kunduz, had fallen already.

So it's only--it will be only matter of days before we see an end to the Taliban resistance in Kandahar.

BORGER: Thank you very much, Dr. Abdullah, for joining us.

And I want to apologize to our attorneys here with us today for cutting into our conversation on military tribunals. We will continue that at some point in the future.

And we'll be back in a moment with our roundtable.

(COMMERCIAL BREAK)

BORGER: And joining us now from Seattle, Washington, former CIA Director Bob Gatesl and here in the studio, Tom Friedman of the New York Times.

Tom, you just heard Dr. Abdullah say that Kandahar was going to fall in a matter of days. We'r also hearing talk this morning from the Northern Alliance saying that, yes, they might allow the Taliban to be part of a coalition government. Does that surprise you?

TOM FRIEDMAN, The New York Times: It doesn't surprise me really, Gloria, because, as he himself said, there are Taliban, and there are Taliban. That is, there are Pashtun tribesmen--and the Taliban are primarily from the Pashtun--who are in the Taliban today, and they'll be in the Northern Alliance tomorrow, and they'll be wearing a red turban on Thursday and a black turban on Friday. That's the nature of Afghan politics.

And then there were the hardcore Taliban, who were really the ideological drivers of the movement and the supporters of Osama bin Laden.

And I think they--when they say the Taliban will be in the coalition, what they're really saying is, the Pashtuns, who are the ethnic...

BORGER: The Afghan...

FRIEDMAN: ... the Afghan Pashtuns, who are the ethnic foundation of the Taliban, will be represented in that coalition.

BORGER: So, as far as the United States is concerned, that is something that they would want?

FRIEDMAN: Yes, I don't think the United States is going to oppose that. You know, Afghanistan has always been a country governed best when governed least, Gloria, and I think the people who want to govern it least are the United States of America.

So I think the attitude of the Bush administration is, guys, anything that works for you, anything that provides a minimum of stability in Afghanistan that will insure that another Osama bin Laden cannot take root and flower there, is fine with us.

BORGER: Bob Gates, there are reports this morning that 1,500 Marines are headed into Afghanistan, although Dr. Abdullah said he had not heard about that. What would they most likely be used for?

ROBERT GATES. Former CIA Director: Well, based on what I've heard, they would probably be more involved in the search for bin Laden, rather than involved in the conventional military campaign in, say, to take Kandahar.

So I think they would probably be there to supplement the special forces teams and others that are in there looking for bin Laden and some of his cohorts.

BORGER: Well, speaking of bin Laden, we now have all this intelligence on the ground. We have massive defections.

You're a former CIA Director. Can you tell us, could Osama bin Laden still slip away?

GATES: Sure he could. They're making it very difficult for him, but, listen, when you're trying to find a single individual in a country as rugged as Afghanistan and where they're familiar with the ground, that's very difficult.

I just remember the difficulty we had in finding Noriega in Panama in 1989, and we had the entire country occupied.

BORGER: Tom, can you tell us what you think the next stage of this war is going to be? Is there a debate in this administration about whether you go t Iraq next, for example?

FRIEDMAN: Well, there's clearly a debate and the more successful we are and the more quickly successful we are in Afghanistan, Gloria, the more that debate is going to heat up.

And I think that those who want to look at where we go next, whether it's Iraq or somewhere else--let's focus on Iraq. I think if the administration does want to go there, we need several things. First of all, we need to start rebuilding a legal argument right now. It's not enough to say we know Saddam is a bad guy. We're sure he's hiding stuff. We need to build a dossier that will be persuasive to the American people and to the world at large that is someone we have to go after. I think that's quite possible, but I think we can't be lazy, we've got to do that.

Secondly, we have to outline a strategy of what would work. How are we going to approach taking out his weapons of mass destruction? Are we going to go to the U.N.? Ask them to pass a resolution? Give him 30 days to allow U.N. inspectors back in. If he doesn't, we're going to do--we're going on the military offensive, or are we going to take another approach and go right for a military operation.

And thirdly, most importantly, who's going to be the Pakistan in that Iraq story? That is, who is going to be the local ally? Is it going to be Saudi Arabia? Is it going to be Jordan? Is it going to be Turkey? We can't conceive of a military operation of the kind that you'd need to take a Saddam regime without local military allies.

So, if we're going to go down the Iraq road, we still have a lot of homework to do in advance.

BORGER: Well, let's ask Bob Gates about that. Do you need a precipitating event, or do you need a coalition, as Tom is saying, to be with you on this one?

GATES: Well, I think, first of all, as Tom says, you need to build the case.

You may end up having to act unilaterally. In fact, I think that the decision to go after Iraq will be very difficult for the administration, because I think a great deal of this very large coalition that has been put together will fall away if we begin military action against Iraq. And so we do need to build a case. We need to say why we're going after Iraq.

And I think, to address their weapons of mass destruction really isn't sufficient at this point. Most people know that they're working on these weapons of mass destruction.

I think we also need to build a case of how Iraq has supported terrorism over the last number of years.

But I think that initially the administration is likely to focus on trying to help other countries like the Philippines and others with assistance to go after elements of terrorist groups that have supported or been trained by bin Laden and so on. In other words, there maybe a transitional phase here.

BORGER: Well, are you saying they would go to other places first and Iraq might then follow?

GATES: No, I'm saying that I think that the nxt steps may involve the kind of quiet use of military assistance, of intelligence assistance, of special forces teams helping other countries such as the Philippines to go after these elements, terrorist elements in their own countries.

I think, I think the administration is not ready to go into Iraq, and I think Tom's point about what is going into Iraq or going after Saddam really mean in the context where you don't have the kind of coalition--won't have the coalition you had in 1991, and where you're going to have to build this case.

BORGER: So, Tom, if you had to say what their next step would be, very quickly, in terms of fighting this war on terrorism, what would you say the administration would do next?

GATES: I think it's going to be focusing on the financial networks, focusing, as Bob said, on the small groups in other countries. And most of all, Gloria, focusing on those 5,000 Arab Chechen fighters who propped up Al Qaeda and Osama bin Laden in Afghanistan. Those are the real enemy, they're the people that have to be uprooted to make sure this network doesn't take root in Afghanistan again.

BORGER: Thank you, both. And that will have to be the last word.

And we'll be back with a final word in a moment.

(COMMERCIAL BREAK)

BORGER: That's our broadcast. And Bob Schieffer will be back here next week. Thanks for watching Face the Nation.